No. 113,963
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
VANCE LEON WHITE,
Appellant.
SYLLABUS BY THE COURT
1.
A claim of prosecutorial error based on comments made during voir dire, opening
statements, or closing argument—comments that are not evidence—will be reviewed on
appeal even when a contemporaneous objection was not made at the trial level.
2.
In this case, a prosecutor's statement during closing argument calling the
defendant's theory of defense "ridiculous" is not clearly erroneous and does not so
prejudice the jury to deny the defendant a fair trial.
3.
District courts are encouraged to use PIK instructions since they have been
developed by knowledgeable committees to bring accuracy, clarity, and uniformity to
jury instructions.
4.
When no timely objection is lodged against a jury instruction given during the
trial, we review the instruction for clear error.
1
5.
The use of the word "should" in PIK Crim. 4th 51.010 is legally accurate and does
not direct the jury to a verdict in favor of the State.
6.
Statutes are presumed constitutional. All doubts must be resolved in favor of its
validity, and before the act may be stricken down, it must clearly appear the statute
violates the constitution.
7.
K.S.A. 2015 Supp. 21-5415(a)(1) is not unconstitutionally vague because it uses
the word "fear" to describe criminal conduct. The word "fear" is understood by persons of
common intelligence to mean an unpleasant emotion caused by a belief that someone or
something is dangerous, likely to cause pain, or a threat.
8.
K.S.A. 2015 Supp. 21-5415(a)(1) does not require a definition of how the victim
should respond to the threat of violence; the defendant's decision to make the threat of
violence triggers criminal liability.
9.
K.S.A. 2015 Supp. 21-5415(a)(1) is not overbroad as it is clearly designed to
prohibit a limited class of impermissible speech—threats to commit violence, i.e., true
threats.
10.
K.S.A. 2015 Supp. 21-5415(a)(1) does not require the State to prove the defendant
actually intended to commit the violence. Once a threat of violence is conveyed, that is
sufficient.
2
Appeal from Cheyenne District Court; JACK L. BURR, judge. Opinion filed October 7, 2016.
Affirmed.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS and SCHROEDER, JJ.
SCHROEDER, J.: Vance Leon White appeals his jury conviction, claiming four
points of error: (1) During closing argument, the prosecutor committed prosecutorial
error; (2) the district court improperly instructed the jury because "should" is included in
PIK Crim. 4th 51.010; (3) K.S.A. 2013 Supp. 21-5415(a)(1) is unconstitutionally vague;
and (4) K.S.A. 2013 Supp. 21-5415(a)(1) is unconstitutionally overbroad. We have
exhaustively examined each one of White's claims and find no error. For the reasons
stated below, we affirm.
FACTS
White and his ex-wife were going through a contentious divorce. Kari Gilliland, of
the Millikan Law Office and former Cheyenne County Attorney, was his ex-wife's
attorney. White was proceeding pro se. White was angry as the divorce proceedings
progressed, and toward the end of the proceedings he began expressing anger at Gilliland.
White had several telephone calls with Gilliland during which he would become upset
and belligerent. As a result, Gilliland stopped the phone calls and required White to
communicate with her office in writing.
Subsequently, Gilliland received several emails from White indicating he was
upset about the contents of a proposed journal entry. White accused Gilliland of perjuring
herself and he referred to the other parties in the divorce proceedings as being part of a
3
"cabal." Gilliland stated that while in court, White would refer to her as a "dirty whore,"
"lying bitch," and a "conspirator," as well as accusing her of having control over the
entire county and the people in it.
On June 26, 2013, White contacted law enforcement because his ex-wife was
preventing him from visiting their minor children. White spoke with Undersheriff
Antonio Rodriguez of the Cheyenne County Sheriff's Office and told him if he did not get
to see his children he "would come in the night and take care of the people who had
anything to do with it." White told Rodriguez he would "start a war the police could not
finish." Rodriguez indicated this was normal baseline behavior for White, so he did not
arrest White for those comments. Rodriguez had extensive personal interaction with
White, had become desensitized to White's angry comments, and felt White was just
blowing off steam. White testified he was upset but was not planning to hurt anyone or
destroy anything.
On June 27, 2013, White called Gilliland's law office and spoke with her assistant.
White told the assistant his comments were not directed at her, but he became belligerent
when discussing Gilliland. During the conversation, he called Gilliland a "bitch," and the
assistant hung up on him. White testified he called Gilliland's office to discuss the denial
of his visitation rights and was upset over not being able to see his children. Karan
Thadani, then the current Cheyenne County Attorney, was an associate at Gilliland's law
office. He spoke with White on the phone and told him, "If you're going to keep doing
this, I'm going to have you arrested for harassment."
On July 2, 2013, White contacted Dorothy Halley at the Kansas Attorney
General's Victim Services Division. White was very angry, indicating he believed he was
a victim of the system, the courts, and the county attorney. He felt his ex-wife was getting
away with various crimes due to a corrupt system in St. Francis, referring to her as a
"drug-crazed bitch." White told Halley the State was keeping his kids from him. He said
4
Gilliland was corrupt and was responsible for him not having his children. He told
Halley, "She fucked with me and I'll fuck her up." He said it was not a threat, but a
promise, and he had told the Cheyenne County Sheriff, Cody Beeson, the same thing.
Halley asked White how her office could help him. White told her it was too late
to get the system to work, but he was going to let everyone, including CNN, know how
bad it was. He said he would "start holy hell war in St. Francis, America." Throughout
the phone call, White expressed anger toward Gilliland, Cheyenne County, and his ex-
wife. He told Halley to contact the sheriff and tell him to arrest him.
After the call with White, Halley contacted the Cheyenne County Sheriff's Office.
Although White made no specific threats against his ex-wife or his children, Halley used
the term "familicide" when discussing her concerns with law enforcement. Halley also
indicated White's comments about starting holy hell war in St. Francis and contacting
CNN made her think he was planning something big.
Beeson called White to discuss his phone call with Halley. White told Beeson he
felt the call was necessary to make a point about his case. White stood by his comments
and told Beeson if he did not get his kids back in 10 days, there would be holy hell war
for Cheyenne County. White also told Beeson, "if there was a 911 call at his ex-wife's
house or [Gilliland's] house, not to come because he didn't want [Beeson] to [get] hurt."
Beeson told White his comments would not help the status with his children. White
responded he would probably go to prison but would go in soft and come out hard and
get revenge on those who sent him there. White also told Beeson he had been pushed to
the edge by the system. Law enforcement did not know where White was located at the
time, so a decision was made to evacuate the Cheyenne County Courthouse and the
Milliken Law Office. White was arrested later that evening in Saline County.
5
White was charged with two counts of aggravated criminal threat in violation of
K.S.A. 2013 Supp. 21-5415(b), two counts of harassment by telephone in violation of
K.S.A. 2013 Supp. 21-6206(a)(1)(B) and (C), and one count of stalking in violation of
K.S.A. 2013 Supp. 21-5427(a)(2). At trial, White testified the comments he made were
because the former county attorney was representing his ex-wife and he could not get law
enforcement to help him. He also felt several crimes were being downplayed or
whitewashed. White stated he called the victim's helpline because he felt he was a victim
of the system. He denied saying he would "fuck up" Gilliland; rather, he said she "was
fucking with me, and I'm going to fuck back." White said he was not trying to terrorize
anyone, he was only trying to draw attention to the injustice being done in his case. He
denied calling Gilliland names in court, said no one would listen to him about the wrongs
being done in his case, and he had had enough. He wanted someone to look into the
conflicts of interest, corruption, and crimes being committed by various county officials.
White's theory of defense was that his statements were political statements aimed
at perceived corruption in Cheyenne County and he was just blowing off steam. White
further argued his statements were conditional and therefore not true threats and that the
alleged threats seemed to grow as each person in the chain of information passed along
details of his call to the Attorney General's office. During closing arguments, the
prosecutor called White's theory of defense "ridiculous." The jury acquitted White of one
count of telephone harassment but convicted him of two counts of aggravated criminal
threat, one count of telephone harassment, and one count of stalking. White was
sentenced to 32 months' imprisonment, with his sentenced suspended, and was placed on
36 months' supervised probation.
White timely appealed. Additional facts are set forth as necessary herein.
6
ANALYSIS
No prejudice from the prosecutor's use of "ridiculous" during closing argument.
Standard of Review
A claim of prosecutorial error based on comments made during voir dire, opening
statements, or closing argument—comments that are not evidence—will be reviewed on
appeal even when a contemporaneous objection was not made at the trial level. State v.
Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012); see State v. Roeder, 300 Kan. 901,
932, 336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015).
As recently analyzed by our Supreme Court in State v. Sherman, 305 Kan. ___,
___ P.3d ___, 2016 WL 4719688 (2016), appellate review of alleged prosecutorial error
involving improper comments to the jury requires
"a two-step process to evaluate claims of prosecutorial error. These two steps can and
should be simply described as error and prejudice. To determine whether prosecutorial
error has occurred, the appellate court must decide whether the prosecutorial acts
complained of fall outside the wide latitude afforded prosecutors to conduct the State's
case and attempt to obtain a conviction in a manner that does not offend the defendant's
constitutional right to a fair trial. If error is found, the appellate court must next determine
whether the error prejudiced the defendant's due process rights to a fair trial. In
evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry
demanded by Chapman[ v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967)]. In other words, prosecutorial error is harmless if the State can demonstrate
'beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). We continue to acknowledge
that the statutory harmlessness test also applies to prosecutorial error, but when
7
'analyzing both constitutional and nonconstitutional error, an appellate court need only
address the higher standard of constitutional error.' State v. Sprague, 303 Kan. 418, 430,
362 P.3d 828 (2015)." Sherman, 2016 WL 4719688, at *14.
Discussion
White argues the prosecutor's comments in closing argument amounted to
prosecutorial error, thereby denying him the right to a fair trial. White points to two
instances in which the prosecutor called White's theory of the defense "ridiculous." First,
in addressing White's argument that his statements were not intended to cause anyone to
respond, the prosecutor said: "Apparently that means no harm no foul. Of course, that's
ridiculous." During rebuttal, the prosecutor went on to say:
"Not his fault, it's the lawyer's fault. It's like we're dealing with a wild animal
here. Hey, as long as you stay 50 feet away, everything's good. It's your fault if you go
close to him. That's ridiculous. It's not the victim's fault; never heard so much victim
blaming in my life."
Before proceeding with our analysis on White's claim of prosecutorial error, we
pause to note that neither defense counsel nor the district court challenged the
prosecutor's closing argument, which to us indicates that during the trial of this matter, no
one thought the statements, when made, were so improper as to warrant an objection.
White argues that referring to the defendant's story as "ridiculous" is outside the
wide latitude allowed to the prosecution during closing argument. In support of this
argument, White cites to State v. Douglas, 274 Kan. 96, 108, 49 P.3d 446 (2002),
wherein the prosecutor called Douglas' testimony unbelievable, told the jury it should not
believe a word out of Douglas' mouth, and called Douglas' story "ridiculous and absurd
and ludicrous." Given the Douglas court went directly to the issue of prejudicial conduct,
8
without deciding the issue, we will assume for purposes of this opinion the use of the
word ridiculous is outside the wide latitude allowed prosecutors during closing argument.
Douglas' attorney timely objected to the comment and the jury was instructed to
disregard it. The Douglas court held there was no reversible error because the jury had
been instructed to disregard the prosecutor's comments and the comments were not so
prejudicial as to be incurable. 274 Kan. at 108.
Here, the facts are distinguishable since White did not object to the prosecutor's
remarks and the jury was never instructed to disregard them. To this extent, any
prejudicial effect of the prosecutor's comments could not be cured as it was in Douglas.
However, the Douglas court did not say whether the prosecutor's remarks, standing alone,
would have been reversible error had the jury not been instructed to disregard it. See 274
Kan. at 108. Further, the prosecutor in Douglas used the words absurd and ludicrous in
addition to the word ridiculous. Here, White only takes exception to the use of the word
ridiculous. In Douglas, the Supreme Court's analysis of the prosecutor's remarks is
unclear whether the use of the word ridiculous alone would be prejudicial, much less
whether, in the absence of the jury being instructed to disregard it, the use would
constitute reversible error.
Arguably, the comments White points to in his brief are similar in scope to those
in Douglas insofar as the prosecutor also referred to White's defense as "victim blaming"
and stated "it's like we're dealing with a wild animal." In context, the use of the word
ridiculous coupled with these comments appears more analogous to the additional use of
the words absurd and ludicrous in Douglas. White cites these comments in his brief but
does not specifically argue this point; however, the Douglas' analysis did focus on the
effect of the comments in the context of the closing argument as a whole. See 274 Kan. at
108.
9
The court in Douglas found no reversible error despite several other statements the
prosecutor made in closing arguments. In addition to calling Douglas' story "ridiculous
and absurd and ludicrous," the prosecutor also told the jury:
"'[I]f you believe every word that came out of Mr. Douglas' mouth, then you're pretty
naive, because what he said doesn't make any sense. . . . Mr. Douglas not only at best, he
made up the name L.A., he came up with it, tried to pitch it to you folks, tried to do as
best he could with you.
"'. . . So, without me spending any more time on his story, which is quite frankly
unbelievable, believe it if you want and find him guilty of felony murder during the
course of a sale of marijuana because he set it up. If you believe him, he got the parties
together, he participated in that if you believe him. It's the State's position that you should
not believe anything he says.'
....
"'Defendant's story is unbelievable. It is absolutely, totally and completely
unbelievable. Now, once we move past that, and so I don't offend anybody I will move
past that.'
"'. . . [I]t is up to you to decide the weight and credit to give any particular
witness or any piece of testimony, so you can judge what Mr. Douglas has decided to tell
you and judge it for what it is worth. And I will call it what it is. It's unbelievable. It is
unbelievable. That's what doesn't make any sense.'
....
"'. . . I submit to you that you shouldn't believe a word out of his mouth. And the
reason you shouldn't believe a word out of his mouth, and believe me folks, if you think
that this is the first defendant that got up and said, I didn't do it—.'" Douglas, 274 Kan. at
106-07.
Douglas did not object to any of these comments.
White points to no similar comments in his brief. Although Douglas does not
indicate whether the use of the word ridiculous would constitute reversible error if the
jury had not been instructed to disregard it, the Supreme Court's treatment of the above-
10
mentioned comments is highly instructive. The Douglas court held the prosecutor's
comments about the believability of Douglas' story was an attempt "to show Douglas'
version of the events was not practicable under the evidence presented at trial" and found
no prejudicial error. 274 Kan. at 107-08.
The prosecutor's comments here could also be seen as attempting to show the jury
White's version of the events was not practicable based on the evidence presented at trial.
While not the best choice of words, the prosecutor's use of ridiculous does not constitute
reversible error. We find Douglas is persuasive as it applies to the facts of this case. It
was an unnecessary overstatement in attacking White's defense. Prosecutors should
always use caution when trying to attack the defendant's theory of defense with strident
words. Under the facts of this case, we find the prosecutor's use of the word ridiculous
did not prejudice White or deny him a fair trial. Furthermore, we are convinced the use of
the word ridiculous by the prosecutor, in light of the entire record, did not affect the
outcome of the trial—i.e., there is no reasonable possibility that the use of the word
ridiculous under these facts contributed to the verdict.
The use of PIK Crim. 4th 51.010 was legally correct.
Preservation of the issue
White did not object to the instruction at trial. Therefore, the issue may only be
reviewed for clear error. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013); State
v. Williams, 295 Kan. 506, 515, 286 P.3d 195 (2012).
Standard of Review
The standard of review when addressing challenges to jury instructions is based
upon the following analysis:
11
"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdictional and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).
The appellate court uses a two-step process in determining whether the challenged
instruction was clearly erroneous. First, the court must consider whether there was any
error at all by considering whether the instruction at issue was both legally and factually
appropriate by employing an unlimited review of the entire record. Second, if the court
finds error, it must assess whether it is firmly convinced the jury would have reached a
different verdict without the error. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484, cert.
denied 135 S. Ct. 728 (2014).
Discussion
White argues the jury was improperly instructed by the district court. As we
consider this argument, we are reminded of the many times our Supreme Court and this
court have stated that district courts are "strongly recommend[ed] the use of PIK
instructions, which knowledgeable committees develop to bring accuracy, clarity, and
uniformity to [jury] instructions." State v. Barber, 302 Kan. 367, 377-78, 353 P.3d 1108
(2015). White asserts the district court's use of PIK Crim. 4th 51.010 was clearly
erroneous. Specifically, White takes issue with the language: "If you have no reasonable
doubt as to the claims required to be proved by the State, you should find the defendant
guilty."
12
White argues the use of the word "should" is legally inaccurate and asserts the
word should is an imperative term which directs a verdict in favor of the State, thereby
depriving the jury of its inherent power of jury nullification.
No clear error
The issue White raises on appeal was recently addressed by another panel of this
court in State v. Jones, No. 111,386, 2015 WL 4716235, at *5-6 (Kan. App. 2015)
(unpublished opinion), rev. denied 303 Kan. 1080 (February 18, 2016). The Jones panel
approved PIK Crim. 4th 51.010 as a proper instruction. Additionally, in State v. Allen, 52
Kan. App. 2d 729, Syl. ¶ 5, 372 P.3d 432 (2016), petition for rev. filed June 6, 2016, the
panel found the use of the word should in the jury instruction did not have the effect of
directing a verdict in favor of the State and therefore was not clearly erroneous. 52 Kan.
App. 2d at 735-36. Several other panels of this court have also rejected the same
argument. See State v. Cuellar, No. 112,535, 2016 WL 1614037, at *1-2 (Kan. App.
2016) (unpublished opinion), petition for rev. filed May 23, 2016; State v. Hastings, No.
112,222, 2016 WL 852857, at *4-5 (Kan. App. 2016) (unpublished opinion), petition for
rev. filed April 1, 2016; State v. Singleton, No. 112,997, 2016 WL 368083, at *4-6 (Kan.
App. 2016) (unpublished opinion), petition for rev. filed February 26, 2016.
As Singleton pointed out, the word should is less of an imperative than must or
will. The word should is advisory, not compulsory. 2016 WL 368083, at *6. The
reasoning in Jones, Allen, and Singleton equally apply to this case. The district court's
instruction using PIK Crim. 4th 51.010 was legally correct and was not erroneous. It did
not negate the jury's right to nullify White's conviction. Therefore, we do not need to
proceed to the second step of the analysis.
13
K.S.A. 2015 Supp. 21-5415(a)(1) is not unconstitutionally vague.
There has been no amendment to this statute since July 1, 2011. Therefore,
for purposes of this opinion, we will cite to the statute as K.S.A. 2015 Supp. 21-
5415(a)(1).
"A void-for-vagueness challenge is based on the due process requirement that a statute's
language must '"convey a sufficiently definite warning of the conduct proscribed when
measured by common understanding and practice."' State v. Adams, 254 Kan. 436, 438,
866 P.2d 1017 (1994) (quoting City of Wichita v. Wallace, 246 Kan. 253, 257, 788 P.2d
270 [1990]). A statute must also '"'adequately guard [ ] against arbitrary and
discriminatory enforcement.'"' Bryan, 259 Kan. at 146 (quoting Adams, 254 Kan. at 439).
A statute is unconstitutionally vague if it '"forbids the doing of an act in terms so vague
that persons of common intelligence must necessarily guess at its meaning and differ as
to its application."' Adams, 254 Kan. at 439 (quoting State v. Dunn, 233 Kan. 411, 418
662 P.2d 286 [1983]).
'"'[V]ague laws offend several important values. First, because we assume that
man is free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on a ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.'"' Rucker, 267 Kan.
at 830." State v. Taylor, No. 109,147, 2014 WL 113451, at *4 (Kan. App. 2014)
(unpublished opinion), rev. denied 301 Kan. 1052 (2015).
Preservation of the Issue
White failed to raise this issue before the district court. On appeal, White argues
the language of the statute is unconstitutionally vague and it meets one or more of the
14
exceptions to the general rule constitutional issues cannot be raised for the first time on
appeal. White claims his vagueness argument is a question of law submitted on proved or
admitted facts and our consideration of the issue is necessary to prevent the denial of
White's fundamental constitutional right to due process. See State v. Ortega-Cadelan,
287 Kan. 157, 159, 194 P.3d 1195 (2008); Pierce v. Board of County Commissioners,
200 Kan. 74, 80-81, 434 P.2d 858 (1967). (Three exceptions to the general rule include:
[1] The newly asserted claim involves only a question of law arising on proved or
admitted facts and is determinative of the case; [2] consideration of the claim is necessary
to serve the ends of justice or to prevent the denial of fundamental rights; and [3] the
district court is right for the wrong reason.) We agree with White's argument here and
will proceed to address whether K.S.A. 2015 Supp. 21-5415(a)(1) is unconstitutionally
vague.
Standard of Review
"Determining a statute's constitutionality is a question of law subject to unlimited
review. An appellate court presumes statutes are constitutional and must resolve all
doubts in favor of a statute's validity. Further, an appellate court must interpret a statute
in a manner that renders it constitutional if there is any reasonable construction that will
maintain the legislature's apparent intent." State v. Soto, 299 Kan. 102, Syl. ¶ 8, 322 P.3d
334 (2014).
Discussion
K.S.A. 2015 Supp. 21-5415(a)(1) provides:
"(a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to place another in fear, or to
cause the evacuation, lock down or disruption in regular, ongoing activities of any
building, place of assembly or facility of transportation, or in reckless disregard of the
15
risk of causing such fear or evacuation, lock down or disruption in regular, ongoing
activities."
White argues K.S.A. 2015 Supp. 21-5415(a)(1) is unconstitutionally vague
because the use of the word "fear" makes the statute unclear. White asserts the word fear
may encompass unreasonable fears or fears unconnected to a threat of violence. A similar
argument was rejected by another panel of this court in Taylor, 2014 WL 113451, at *6.
Taylor held the term fear is understood by persons of common intelligence to mean "'an
unpleasant emotion caused by the belief that someone or something is dangerous, likely
to cause pain, or a threat.' [Citations ommitted.]" 2014 WL 113451, at *6. Taylor further
found the statute criminalizes a threat to commit violence, which corresponds with the
common meaning of the term fear. 2014 WL 113451, at *6.
Another panel of this court held the phrase "with the intent to place another in
fear" was not unconstitutionally vague. State v. Denton, No. 111,085, 2015 WL 5036669,
at *4 (Kan. App. 2015) (unpublished opinion) (citing Taylor, 2014 WL 113451, at *6;
State v. Rodriguez, No. 110,604, 2014 WL 6777430, at *2-4 [Kan. App. 2014]
[unpublished opinion], rev. denied 302 Kan. 1019 [2015]), rev. denied 303 Kan. 1079
(2016). Rodriguez found the reaction of the recipient of the threat is irrelevant because
the statute plainly focuses on the intent of the defendant to make someone fearful by
communicating a threat of violence. 2014 WL 6777430, at *3-4. Similarly, Taylor found
"[t]he term 'fear' is not dependent on the sensibilities of each individual victim." 2014
WL 113451, at *6. Denton found the use of the term fear correlates with the actus reus—
communicating a threat to commit violence. A person of common intelligence
understands criminal liability attaches when the intent of the criminal threat is to induce
fear. 2015 WL 5036669, at *5.
There is no requirement in the criminal threat statute that the defendant actually
incite fear in the victim or that any such fear be reasonable; the defendant must only
16
intend to place the victim in fear. Denton, 2015 WL 5036669, at *6 (citing Rodriguez,
2014 WL 6777430, at *3; Taylor, 2014 WL 113451, at *6). In other words, the victim's
emotional state or response to the defendant's threat, whether reasonable or not, is not a
standard for enforcement and is therefore irrelevant. K.S.A. 2015 Supp. 21-5415(a)(1) is
not unconstitutionally vague.
The reasoning found in Denton, Rodriguez, and Taylor applies here. The statute is
not unconstitutionally vague and reasonably describes conduct a person of common
intelligence would understand is prohibited.
K.S.A. 2015 Supp. 21-5415(a)(1) is not unconstitutionally overbroad.
Preservation of the Issue
Before we consider White's argument K.S.A. 2015 Supp. 21-5415(a)(1) is
overbroad, we must determine if White timely raised the issue before the district court.
We find White sufficiently touched on the issue before the district court when he
challenged the constitutionality of the statute by claiming his statements constituted
political speech protected under the First Amendment to the United States Constitution.
Cf. State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011) (issues not raised before the
district court generally cannot be raised on appeal).
Standard of Review
Whether a statute is constitutional is a question of law subject to unlimited review.
Soto, 299 Kan. at 103.
17
Discussion
White claims K.S.A. 2015 Supp. 21-5415(a)(1) is unconstitutionally overbroad,
both facially and as applied. White asserts the statute criminalizes constitutionally
protected free speech, arguing because the statute does not define the word fear, it
prohibits conduct beyond true threats. White's argument is unavailing. As used in the
statute, fear refers to a threat to commit violence. See K.S.A. 2015 Supp. 21-5415(a)(1);
Taylor, 2014 WL 113451, at *6. Therefore, K.S.A. 2015 Supp. 21-5415(a)(1) only
prohibits true threats. See Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L.
Ed. 2d (2003) ("true threats" encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group). K.S.A. 2015 Supp. 21-5415(a)(1) is not unconstitutionally
overbroad on its face.
A statute is overbroad if it prohibits or criminalizes constitutionally protected
conduct. See Dissmeyer v. State, 292 Kan. 37, 43, 249 P.3d 444 (2011). This court
presumes statutes are constitutional. Soto, 299 Kan. 102, Syl. ¶ 8. As the party attacking
the statute, White has the burden of overcoming that presumption. See State v. Williams,
299 Kan. 911, 920, 329 P.3d 400 (2014). Moreover, the overbreadth doctrine "should be
employed sparingly and only as a last resort." Smith v. Martens, 279 Kan. 242, 253, 106
P.3d 28 (2005).
It is well established that a successful overbreadth challenge must prove (1) the
protected activity is a significant part of the law's target, and (2) there exists no
satisfactory method of severing that law's constitutional applications from its
unconstitutional applications. Dissmeyer, 292 Kan. at 40-41 (quoting Smith, 279 Kan. at
253). Moreover, courts use a common-sense interpretation when determining what
conduct a statute potentially could prohibit and "will not give strained meanings to
legislative language through a process of imaginative hypothesizing." State v. Wilson,
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267 Kan. 550, 557, 987 P.2d 1060 (1999). In other words, courts must construe statutes
to avoid unreasonable or absurd results and presume the legislature does not intend to
enact meaningless legislation. State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012).
A "true threat" is one of the narrowly limited classes of speech that the First
Amendment to the United States Constitution permits a state to ban. The United States
Supreme Court has clarified:
"'True threats' encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals. [Citations omitted.] The speaker need not
actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s]
individuals from the fear of violence' and 'from the disruption that fear engenders,' in
addition to protecting people 'from the possibility that the threatened violence will occur.'
[Citation omitted.]" Black, 538 U.S. at 359-60.
White argues that because K.S.A. 2015 Supp. 21-5415(a)(1) does not define the
type of intended fear that may result in a criminal conviction or require that fear be
reasonable, the statute criminalizes speech that does not convey a true threat. For support,
White poses three hypothetical scenarios that would purportedly violate the criminal
threat statute: (1) A worker in a haunted house threatening to kill guests as part of the
haunted house act; (2) two close friends arguing about an accident and one of them
yelling, "I'm going to kill you if you don't pay me back"; and (3) "a mildly upset client
may sarcastically tell an attorney that if the attorney sends her one more bill with a
mistake on it, she will unleash an army of tiny Martians on the attorney."
White's hypotheticals are not persuasive. In fact, these exact same hypotheticals
were explicitly rejected by this court in Denton, 2015 WL 5036669, at *7. On its face, the
statute is clearly designed to prohibit a limited class of impermissible speech—threats to
commit violence, i.e., true threats. See Black, 538 U.S. at 359-60. White's hypotheticals
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are based on the mistaken assumption that the statute does not require serious expressions
of intent to commit violence as a requirement for conviction. There is no reading of
K.S.A. 2015 Supp. 21-5415(a)(1) that supports such a conclusion, and White points to no
authority concerning an unconstitutional application of the statute.
As discussed earlier, K.S.A. 2015 Supp. 21-5415(a)(1) does not require a
definition of how the victim should respond to the threat of violence; the defendant's
decision to make the threat of violence triggers criminal liability. K.S.A. 2015 Supp. 21-
5415(a)(1) requires the specific intent to induce fear; therefore, the statute protects
individuals from a serious expression of an intent to commit unlawful violence,
regardless of whether the speaker intended to follow through with the threat. The statute
is not unconstitutionally overbroad. Denton, 2015 WL 5036669, at *7.
White's as-applied challenge centers on the proposition: "[A]lthough the State
presented evidence that [he] communicated a threat, there was not strong evidence that
[he] intended or made that threat in reckless disregard that someone would reasonably
fear actual violence." White's argument conflates the legal standard of constitutional
overbreadth of a statute with a factual question of his subjective intent in making the
statement. Essentially, White argues the statute is overbroad as applied to him because he
could not control how the recipients of the threat would perceive and react to it. White's
argument is without merit.
White's argument that there was insufficient evidence he intended to place
someone in reasonable fear of actual violence or did so with reckless disregard is
essentially a question of the sufficiency of the evidence, which is not an issue White
raises on appeal. Further, White cites no pertinent authority in support of his argument.
An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn,
297 Kan. 610, 633, 303 P.3d 680 (2013). A point raised incidentally in a brief and not
argued therein is also deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d
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399 (2013). Failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority is akin to failing
to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). White has
failed to support his argument with pertinent authority or otherwise sufficiently explain
why his argument is sound; therefore, the issue is deemed waived and abandoned.
CONCLUSION
We find no merit in White's claims of error. The prosecutor's closing argument
using the word "ridiculous" as a comment to White's theory of defense did not prejudice
White. The district court's use of PIK Crim. 4th 51.010 to instruct the jury was legally
proper, and the inclusion of the word "should" in the instruction did not direct the jury to
a verdict in favor of the State.
White's claim K.S.A. 2015 Supp. 21-5415(a)(1) is unconstitutionally vague
because it uses the word "fear" lacks support in the law. The word fear is a commonly
understood word capable of easy comprehension. Finally, White's claim K.S.A. 2015
Supp. 21-5415(a)(1) is overbroad and unconstitutional is without merit. K.S.A. 2015
Supp. 21-5415(a)(1) constitutionally restricts threats to commit violence, i.e., true threats.
We affirm the district court.
Affirmed.
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